FROM THE COURT OF APPEALS OF VIRGINIA.
Reversed and remanded.
Paul Kugelman, Jr., Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General; David C. Grandis, Assistant Attorney General, on briefs), for appellant.
Jon C. Poulson for appellees.
LEROY F. MILLETTE, JR.,
[287 Va. 376] Present: All the Justices
In this appeal we consider whether the Court of Appeals erred in holding that the Virginia Marine Resources Commission lacked authority under Virginia law to regulate the expansion of the Chincoteague Inn's restaurant operations onto a floating platform secured alongside its building and situated partially over state-owned subaqueous bottomland.
I. Facts and Proceedings
A. Relevant Facts
The Chincoteague Inn is a restaurant that sits adjacent to the Chincoteague Channel in the town of Chincoteague, Virginia. In late April and early May 2010, the Inn lashed together two steel barges, held the barges in place, and connected those barges to the Inn by way of a gangway to create a floating platform. Later, in June 2010, the Inn removed one of those barges and the floating platform was [287 Va. 377] resituated alongside the Inn. The Inn intended to keep the floating platform positioned alongside its building to be used as part of the Inn's restaurant sitting and dining area for approximately four months until September 2010.
The Inn's plans were interrupted when an unidentified competitor complained to the Virginia Marine Resources Commission that the Inn had added a " large floating platform" alongside the Inn's building structure. On June 11, Commission staff member George H. Badger followed up on this tip and conducted an onsite inspection. Mr. Badger ascertained that, while a portion of the floating platform was situated above a man-made boat basin, a 54-foot long by 13.6-foot wide portion of the floating platform was situated above state-owned subaqueous bottomland.
Based on Mr. Badger's determination that a portion of the floating platform was situated over state-owned subaqueous bottomland, the Commission concluded that it had jurisdiction over that portion of the platform. Further, the Commission categorized this 54-foot by 13.6-foot portion of the floating platform as unauthorized and requiring removal. The Commission notified the Inn of this determination by a written Notice to Comply and demanded immediate removal of the unauthorized portion within 10 days. The Notice further warned the Inn that failure to comply would result in the matter being placed before the full Commission for an enforcement action, and that monetary penalties may be imposed.
The Inn, through its manager Raymond Britton, responded to the Commission's letter by submitting a joint permit application that requested an after-the-fact permit for the entire floating platform. The Commission, believing it inappropriate to act upon this application while a violation was ongoing, sent a letter to the Inn that again demanded removal of the unauthorized portion of the platform. On June 28, the Commission undertook another site inspection and found that the 54-foot by 13.6-foot portion of the floating platform had not been removed.
B. Relevant Proceedings
The full Commission heard the enforcement action against the Inn, voted in favor of the enforcement request, and found that the
54-foot by 13.6-foot portion of the floating structure constituted an unlawful use of state-owned submerged lands pursuant to Code § 28.2-1203. [287 Va. 378] The Commission directed removal of that portion of the floating platform within 10 days.
The Inn timely appealed the Commission's decision to the Circuit Court of Accomack County pursuant to Code § 2.2-4026, Rule 2A:2, and Rule 2A:4. The Inn challenged the Commission's decision on three points: (1) that the Commission failed to make express findings of fact required to allow a court to review an agency's actions, (2) that the Commission failed to make findings of fact based on the required substantiality of the evidence, and (3) that the Commission lacked jurisdiction over the floating platform under Virginia state law, and that federal maritime law governed the floating platform.
The circuit court focused on this third argument to dispose of the case. In a final decree, the circuit court found that the floating platform was a " vessel" and that the Commission lacked jurisdiction to require removal of the floating platform. The final decree was unclear about whether this decision rested upon a determination that Virginia state law does not authorize the Commission to exercise jurisdiction over the floating platform, or upon a determination that federal maritime law preempts any such Virginia state law. The circuit court then set aside the Commission's decision, dismissed with prejudice the Commission's enforcement action, and awarded approximately $14,000 in fees and costs to the Inn.
The Commission timely appealed to the Court of Appeals. A three judge panel concluded that the Commission admitted that it failed to preserve the issue about whether the floating platform was a " vessel," and noted that the Commission had conceded that the structure was indeed a " vessel." Virginia Marine Res. Comm'n v. Chincoteague Inn, 60 Va.App. 585, 590, 731 S.E.2d 6, 8 (2012). The panel, however, also held that under the facts of this case federal maritime law did not preempt the Commission's authority to order the removal of the floating platform over state-owned submerged lands. Id. at 599, 731 S.E.2d at 12. The panel therefore reversed the circuit court, vacated the award of fees and costs because the parties agreed that the court's award of fees and costs to the Inn " rises or falls" with the resolution of the other issues on appeal, and remanded the case back to the circuit court to determine whether Virginia state law authorized the Commission to issue its enforcement decision. Id. at 591 n.2, 599, 731 S.E.2d at 8 n.2, 12-13.
The Court of Appeals granted the Inn's petition for a rehearing en banc and stayed the panel decision's mandate. Virginia Marine Res. [287 Va. 379] Comm'n v. Chincoteague Inn, 60 Va.App. 719, 720, 732 S.E.2d 45, 46 (2012) (en banc). In its en banc opinion, the Court of Appeals observed that the Commission conceded the issue that the floating platform was a " vessel." Virginia Marine Res. Comm'n v. Chincoteague Inn, 61 Va.App. 371, 375 n.1, 735 S.E.2d 702, 704 n.1 (2013) (en banc). Thus, the Court of Appeals first addressed the preliminary issue of whether Virginia state law authorized the Commission to exercise jurisdiction over the floating platform before reaching the subsequent issue of federal preemption, and held that the Commission could not exercise jurisdiction over the Inn's floating platform pursuant to Code § 28.2-1203. Id. at 380-81, 385-87, 735 S.E.2d at 707, 709-10. The en banc decision by the Court of Appeals affirmed the circuit court's determination that the Commission lacked jurisdiction and accordingly affirmed the circuit court's award of fees and costs to the Inn. Id. at 387, 735 S.E.2d at 710.
The Commission timely filed a petition for appeal with this Court.
C. Assignments of Error
Upon appeal, our review considers three logically distinct legal issues. First, whether Code § 28.2-1203(A) permits the Commission to regulate the floating platform. Second, whether federal maritime law applies to the floating platform because it is a " vessel" under 1 U.S.C. § 3. Third, whether, if both Code § 28.2-1203(A) and federal maritime law apply to the floating platform, state and federal law may simultaneously govern that floating platform or if federal maritime law preempts Code § 28.2-1203(A). The Court
of Appeals in its en banc decision addressed the first two of these issues. It did not reach the third issue of federal preemption.
Virginia Marine, 61 Va.App. at 387, 735 S.E.2d at 710.
In this appeal we address the assignments of error and the arguments of the parties to the extent they direct us to evaluate the following:
1. Whether the Court of Appeals erred in determining that the Commission lacked jurisdiction to regulate the floating platform under Code § 28.2-1203(A).
2. Whether the Commission can withdraw its concession that the floating platform is a " vessel" as defined under 1 U.S.C. § 3.
[287 Va. 380] II. Discussion
A. Standard of Review
This appeal requires us to resolve issues of constitutional interpretation and statutory construction. We resolve these purely legal issues de novo. L.F. v. Breit, 285 Va. 163, 176, 736 S.E.2d 711, 718 (2013).
This appeal involves an administrative agency. Typically, we give deference to the decisions of administrative agencies when those decisions " fall within an area of the agency's specialized competence."
Virginia Dep't of Health v. NRV Real Estate, LLC, 278 Va. 181, 185, 677 S.E.2d 276, 278 (2009). " However, when an issue involves a pure question of statutory interpretation, that issue does not invoke the agency's specialized competence but is a question of law to be decided by the courts." Alliance to Save the Mattaponi v. Commonwealth Dep't of Envtl. Quality, 270 Va. 423, 442, 621 S.E.2d 78, 88 (2005). For those same reasons, we hold that no agency has specialized competence in the purely legal issue of interpreting the Constitution of Virginia.
See Browning-Ferris Indus. v. Residents Involved in Saving the Env't, 254 Va. 278, 284 492 S.E.2d 431, 434 (1997); Sims Wholesale Co. v. Brown-Forman Corp., 251 Va. 398, 404, 468 S.E.2d 905, 908 (1996). We therefore afford the Commission's determination no deference when resolving the issues in this appeal.
B. The Commonwealth's Sovereign Authority Over State-Owned Subaqueous Bottomland
The focus of this appeal is the operation of Code § 28.2-1203(A). It is our " duty" to " constru[e] a statute to avoid any conflict with the Constitution" of Virginia and the United States Constitution.
Commonwealth v. Doe, 278 Va. 223, 229, 682 S.E.2d 906, 908 (2009); Jeffress v. Stith, 241 Va. 313, 317, 402 S.E.2d 14, 16, 7 Va. Law Rep. 1737 (1991);
see also Town of Victoria v. Victoria Ice Light & Power Co., 134 Va. 134, 139, 114 S.E. 92, 93 (1922) (" Of course [a] statute must be construed as subordinate to . . . pertinent sections of the Constitution [that are] inconsistent therewith." ). This is true even when the statute's plain language is unambiguous and not absurd. See, e.g., Elizabeth River Crossings OpCo, LLC v. Meeks, 286 Va. 286, 319-20, 749 S.E.2d 176 & n.7, 286 Va. 286, 749 S.E.2d 176, 193 & n.7 (2013). It is therefore [287 Va. 381] pertinent to review the constitutional context in which Code § 28.2-1203(A) arises before addressing the plain language of that statute.
1. The Basis for the Commonwealth's Sovereign Authority Over State-Owned Subaqueous Bottomland
Under the common law of England, the sovereign Crown held title to and exercised dominion over all tidal waters and tidal bottomland below the high water line located within England's geographic jurisdiction. Shively v. Bowlby, 152 U.S. 1, 11-14, 14 S.Ct. 548, 38 L.Ed. 331 (1894). The geographic scope of this authority expanded as English colonists began to claim land on the North American continent, so ...